
    The Commissioners of the Exchange and Banking Company of New Orleans v. Catharine Bein and Another.
    Property purchased under the authority of the husband in the name of a wife, between whom and her husband there existed a community of acquests, but not paid for with her paraphernal funds under her separate administration, nor received by her as a dation en payement from a debtor of a separate and parapher-nal claim, belongs to the community. The contract is as binding on the community as if made by the husband, and the wife neither becomes the owner of the property nor incurs any personal responsibility therefor, (C. C. 2371, 2372, 2375, 2378, 2379, 2393) ; nor could she in any manner bind herself with her husband for the payment of the price. C. C. 2412.
    The 27th section of the statute of 1st April, 1835, incorporating the Exchange and • Banking Company of New Orleans, authorizing a “ wife to bind herself jointly and in solido with her husband in all hypothecary contracts or obligations entered into by him in favor of that institution,” does not empower a wife to bind herself with her husband, for the price of stock of the company, purchased in her name during the existence of the matrimonial community. Per Curiam : The provision in favor of the bank being in derogation of the general rule prescribed by art. 2412 of the Civil Code, must be strictly construed. It cannot be extended to cases not clearly within its purview.
    Appeal from the District Court of the First District, Buchanan, J.
    
      Bonford, for the appellants.
    
      Wray and Roselius, for the defendants.
    
      F. B. Conrad, for Adams.
    It is contended that the defendant is a married woman, and that, as there is no evidence that the “ contract was converted to her benefit,” she is not bound by it.
    This argument is founded on some decisions heretofore rendered by this court. Upon reference to those cases, it will be found, that they all refer to the case of Durnford v. Gross and Wife, 7 Mart. 465. That case was decided under the Spanish law, and is based exclusively on the 61st Law of Toro, of which it quotes the very words ; but that law was repealed in 1828, and our present laws contain no restriction on the power of married women to contract, such as was contained in it, to wit: “that the contract must be proven to be beneficial• to them." On the contrary, under our present system, the law on this subject is, that married women may contract in all cases with the consent of their husbands. Civ. Code, arts. 1775, 1779. She may purchase for the community. Civ. Code, art. 2371. Our whole legislation on the subject of the relations of married persons clearly recognizes the full capacity of the wife to contract, when authorized by her husband, and if separated from him in bed and board, without his authority. Civ. Code, art. 125. Nay, so far from imposing upon her the restrictions contended for by defendant’s counsel, the law even goes the length of enabling a married woman, if she be a public merchant, to contract, without being empowered by her husband. Civ. Code, art. 128. Speaking of the community, our Code says, that it consists of property acquired during the marriage, “ even although the purchase be only in the name of one of the two.” Art. 2371. All these articles demonstrate the policy of our present laws to be, to enable the wife to contract in all cases with the authority of the husband ; and nowhere in the Code can the restriction of the Spanish law be found, that the contract must be shown to have enured .to her separate bene■fit. On the other hand, it is equally clear, that any debts thus contracted by her are community debts. Civ. Code, art. 2372. Code Nap. 1409, 1426. Consequently she may escape responsibility ultra vires of the community, by obtaining a separation of property during the marriage; (Civ. Code, arts. 2399, 2404;) or by renouncing the community after the dissolution. Art. 2379.
    Art. 2412 is explained by art. 1784. They are both intended to prohibit married women ftom becoming sureties.for the debts of their husbands. It is not pretended that such was the case in the present instance. On the contrary, the defendant’s answer and the evidence show, that the note was given for a debt of her own. If the wife could make the contract at all, certainly her husband’s joining her in it did not affect its validity. If she could give a stranger as her security or endorser, certainly she could give her husband.
    The question as to the ultimate liability of the wife beyond the assets of the community, can in no degree affect the legal character of the contract. Is the contract such a one as the wife, under our present system of laws, could, with the authority of her husband, enter into ? This is one question. How can the wife exonerate herself from the obligation incurred by the contract 1 That is another and a very different question. The fact of the wife being able hereafter to shield herself from personal responsibility by obtaining a separation of property, or by renouncing the community, is not at all inconsistent with the proposition that the contract, per se, is legal, and one which she is perfectly competent to make. Non constat, that the community is not amply sufficient to meet the obligation. And non constat, that the wife, even if the community should prove insufficient, will renounce. The future action of the defendant has nothing to do with her capacity to make this contract; and whether she can hereafter devise means to escape any responsibility, beyond the assets of the community, is a question which may arise at the proper time. “ Sufficient for the day is the evil thereof.”
   Morphy, J.

This suit was brought upon a protested note for $16,000, drawn by the defendant to the order of, and endorsed by, John D. Bein, her husband. A judgement by default was entered up against both of the defendants. On its being made final, an appeal was taken by Catharine Bein. It is urged in her behalf in this court, that the note drawn by her in favor of her husband was a nullity in his hands, and that the rights of the plaintiffs, to whom he had endorsed it, were no better than his. There being no evidence in the record of the circumstances under which the contract had been made, the cause was remanded with a view to allow the plaintiffs an opportunity of placing before us all the facts in relation to it, and of showing, if they could, that the present was one of those cases in which a married woman can validly bind -herself with her husband under their charter. 4 Rob. 225. it appears from the record now brought up, that, on or about the 17th of November, 1841, C. Adams, Jun., being the owner of six hundred and forty shares of the capital stock of the Exchange Bank, and being desirous of transferring them to the defendant, Catharine Bein, applied to the board to substitute her name to his on a stock note for $16,000, which he owed to the Bank, that sum being the price she had agreed to pay for the stock. The application having been granted, the stock was transferred to the defendant, Catharine Bein, on the books of the corporation. She pledged it to the Bank, and offered for discount upon this pledge a note, of which the one now sued on is a renewal. It was discounted, and the proceeds placed to her credit. She drew a check for the amount, and with it Adams took up his note. At the meeting of the board which granted Adams’ application and discounted the note, there were only four directors present. It it not shown that the defendant, Catharine, was ever separated in property from her husband, John D. Bein, who, after paying $3000 on the note sued on, became a bankrupt on the 6th of December, 1842, and was discharged from all debts contracted prior to that date. There was a judgment below in favor of the defendant, and the plaintiffs appealed.

There being a community of gains and acquests between Catharine Rein and her husband, any property purchased during the marriage belonged of right to such community, of which he was the head and master. It matters not, according to art. 2371 of the Civ. Code, whether the purchase be made in the name of one of the spouses or of both. In like manner all debts contracted during the marriage, were community debts. Art. 2372. If a purchase is made, or a debt contracted in the name of the wife, duly authorized by her husband, the contract is valid, and is as binding on the community as if it had been made by the husband himself; but. the wife thereby incurs no personal responsibility, nor does she become the owner of the property thus bought. This court has, however, often recognized an exception to this general rule, in relation to the purchase of property in the name of the wife: when it is paid for with her paraphernal funds under her separate administration, or when it is received as a da-iion en payement, made to her by a debtor of a separate and paraphernal claim of hers, the property does not belong to the community, but she becomes the separate and exclusive owner of it. 1 La. 521. 17 La. 300. 1 Rob. 367. In the present case, the stock purchased during the marriage has not been paid for by the wife, in whose name it was bought; a part of the price has been, paid by the husband ; and the question is, whether she can be personally held for the balance. We are clearly of opinion that she cannot. If, on the one hand, the wife, as long as the community exists, can make no claim to any part of its property ; she cannot, on the other hand, be sued for any of its debts, for which the husband, as the head and master of the community, is alone responsible. Her interest in the community is only eventual and contingent, and is to be ascertained upon its dissolution ; it is only then that she becomes entitled to one-half of the property, and at the same time responsible for one-half of the debts, (Civ. Code, arts. 2375, 2378); but she then has the privilege of exonerating herself from such debts, by renouncing the partnership or community of gains. Ib. art. 2379. If, before the dissolution of the community by the death of one of the spouses, the wife has the right of praying for a separation of property, it is not to release herself from any personal liability for the debts of the community, because she can incur none; but it is to protect her dowry and other claims when the disorder of the affairs of her husband induces her to fear that they might be endangered. Ib. art. 2393. If then the defendant, Catharine Bein, has clearly incurred no personal responsibility by the mere fact of contracting this debt in her own name, because it is a community debt, it is equally clear that she could not, in any manner, bind herself with her husband for the payment of the same. Ib. art. 2412. 1 Rob. 218. 4 Rob. 115. It is, moreover, in evidence, that John D. Bein, the head of the community, has been discharged from all its debts under a decree of bankruptcy. It is difficult to perceive how the defendant, Catharine'Bein, can have remained responsible for this community debt, when it has, with all others contracted before the 6th of December, 1842, been discharged and extinguished. But it is urged, that the language of the 27th section of the charter of the Exchange Bank is broad enough to cover all obligations entered into by the wife with her husband, even for his, or the community’s debts. We do not think so. The section relied on provides, that in all hypothecary contracts or obligations entered into by any individual with, or in favor of, the president and directors of the Exchange Bank, according to the true intent and meaning of this act, it shall be lawful for the wife of such individual to bind herself jointly and in solido with him,” &c. The terms of this enactment clearly restrict it to the class of contracts and obligations therein described; and a reference to the 10th section of the same charter, which authorizes loans on land and slaves to be secured by mortgage, shows what were the hypothecary contracts and obligations that might be entered into according to the true intent and meaning of the act. The language used surely excludes the idea, that the wife could bind herself with her husband, in all kinds of contracts or obligations whatever. Some reliance is placed upon the French text of the charter, in which the term obligations does not seem to be qualified by the expression hypothecates; but on an examination of other charters, containing similar provisions in relation to married women, it will be seen, that the French test relied on is a bad translation of the English, which appears to us free from any ambiguity ; but even if there were any doubt, this provision in favor of the Bank being in derogation of the general rule as laid down in art. 2412 of the Civ. Code, should be strictly construed, and should not be made to extend to cases not coming clearly within its purview. Under this view of the subject, we have found it unnecessary to inquire into the question raised as to the illegality of the transfer of the stock, and the consequent want of consideration of the note-sued on.

Judgment affirmed.

TzTm\

44 437 
      
      
        Bonford, prayed for a re-hearing, for the purpose of obtaining a modification of the judgment so as to leave the rights of the Bank against Adams unaffected, by declaring the contract between them and the defendants absolutely void ; contending that there was no contract for the want of consent, the Bank and Adams never having intended to contract with Catharine Bein as the agent of her husband, or as representing' the community.
      
        Re-hearing refused.
      
     