
    Lisima Provost v. Paul Provost.
    The law forbids the transfer of paraphernal property by the wife to pay the debts of the husband, or the debts of the community which he was bound to pay.
    APPEAL from the District Court of St. Mary, Vomhies, J.
    
      Olivier, for plaintiff,
    made the following points: 1. An obligation without a cause, or with a false or unlawful cause, can have no effect. C. C. 1887. And the cause is illicit when it is forbidden bylaw. C. C. 1889. Consequently, the agreement or transaction bas.ed upon such a cause is void. C. C. 2026. 2. Individuals cannot, by their conventions, derogate from the force of laws, and whatever is done in contravention of a prohibitory law is void. C. C. 11 and 12. 3. The wife, whether separated in property from her husband or not, cannot bind herself for him, nor conjointly with him, for debts contracted by him before or during marriage. C. C. 2912. 4. The wife is not bound if the consideration of the contract be not for her separate advantage, and not something which the husband was bound to furnish her with. 7 N. S. 65. 7 M. R. 465. 2d Ann. 579. 4th Ann. —. And the burthen of proving that the transaction enured to her benefit, is upon the defendant. 4 R. R. 509. 1st Ann. 428. The husband is b.ound to furnish the wife with whatever is required for the necessities of life. Q. C. 122. 5. The transfer by the plaintiff to the defendant of her rights in the succession of her father, to secure the payment of her husband’s debts recited in the act, is null, because it is in effect a contract of suretyship, or assumpsit, by which the plaintiff was made to divest herself of her rights to secure the payment of her husband’s debts; and that this transaction, far from enuring to her benefit, will wrest from hpr every means of support, should the judgment of the inferior court be reversed, is abundantly shown by the evidence in the record. 6. When the law incapacitates persons from malting contracts of a particular kind, its provisions cannot be evaded by giving to those contracts a different form from that forbidden by law, when in substance the contract is that prohibited. 5 N. ¡3.54. 7 N. S. 343. 5 N. S. 431. 4 R. R. 509. 1st Ann. 428.
    
      Brette and Tucker, for the defendant,
    contended: 1. To the proposition that the wife cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage, we yield a ready assent, for it is a positive enactment of the code; but we insist that the contract under consideration does not come within this prohibition. That the contract of the wife, in order to be binding upon her, must inure to her own benefit and advantage, is a proposition that has been too often established by the decisions of this court to admit of a question; and in insisting upon the validity of the contract of the plaintiff in the case at bar, this proposition may be admitted to its fullest extent. For, by a simple inspection of the authentic act itself, it will be found pregnant with evidence that the contract inured to the benefit and advantage of the plaintiff, and that, too, by her own sojemn acknowledgment; to contradict which there is not a particle of evidence in the case, but the evidence of A. Picol, to coroborate it.
    The district judge erred. This will be apparent from a mere inspection of the authentic act. The authorities invoked by the counsel of the plaintiff to support her cause, do not embrace the pase at bar, and are not at all decisive of it; which will clearly appear by looking to the facts on which those authorities rest.
    In none of the cases where the Supreme Court have absolved the wife from her engagements, did the contract in any way inure to her benefit or advantage; but it was either directly or under disguise to pay the debts of the husband. The very facts wanting in them to make the contract binding are manifest in this case.
    But the case of Dickerman, v. Reagan, 2d Ann. 440, embraces this case, and is of controlling authority, on the point under consideration, in favor of the appellant. There, an action was brought to render the wile liable., for articles of merchandise, alleged to have been furnished for the use of herself, family and plantation, during the existance of her marriage. The defence was, that the property of the defendant was all paraphernal; that it was under the administration and control of the husband, between whom and herself there existed a community of acquets and gains, at the time the account was contracted; and that the debt was due by the community, and not by the defendant. The issue of fact was proved as laid. The husband appeared to have no pecuniary means. Some of the witnesses stated that he had the exclusive control of the defendant’s property ; others, that he managed her affairs as her agent. This court says : “ Whatever may have been the character of his authority, the defendant could not, by surrendering to him either the partial or entire administration, exonerate herself from liability for debts incurred for her individual use, or for the purpose of rendering her separate property productive, or in supporting those marriage charges which she is bound by law to bear. It is true, that- debts contracted during the marriage enter into the community of gains, and must be acquitted out of the common fund. C. C. 2372. But this provision applies to the parties ¡done, and regulates their rights between themselves, upon the settlement of the community at its dissolution. It has no application to creditors, and cannot deprive them of their recourse against the wife during the marriage, for debts contracted for her separate advantage, and for which she is individually liable.” See also 2 L. R. 89.
    2. This action, as brought by the plaintiff, is the action condictio indebiti to which the wife was entitled under the senatus consultwm velleianum, to recover back properly sold by her to her husband’s creditors in discharge of his debts. 16th law of the 1st title of Pothier’s Pandects. And being a branch of the general action sine causa, by which all that has been paid or given without real motive may be reclaimed; it is therefore sufficient that there be a cause, real or probable, for paying, to defeat the plaintiff at bar.
    It will not be denied, we trust, that the authentic transfer was a payment of what was due to defendant by "the plaintiff, or her husband, or the community. So true is this, that the transfer has made a transposition of the parties. Heretofore defendant was the creditor, but no sooner was the transfer perfected, than he became the debtor. He obligates himself to restore to plaintiff-any surplus there may be.
    3. Plaintiff' says that the veritable debtor is her husband. Were that true, she is, nevertheless, precluded from recovering here, as payment made for a debtor by any person whatever is good, and extinguishes the obligation. “ Repetitio nulla est ab eo qui suum recepit tametsi ab alio quam a vero debitore solutum est.” Poth. vol. 5. p. 108. C. C. 2126, 2127.
    4. Even admitting that plaintiff’s obligation was merely a natural one, and could not have been enforced by action, yet it has the following effect, viz : that no suit will lie to recover what has been paid or given in compliance with such natural obligation. C. C. 1752, 2129, 1840, 2280.
    If our laws do not permit the enforcement of natural obligations by action, it is because of the uncertainty of their being legitimate. Payment shows that the suspicion of the law was not founded. The plaintiff’s obligation to pay for what she bought at the defendant’s store to support herself and family, is a natural obligation of the strongest kind, founded on equity. “Neminem aequum est cum alterius detrimento locupletari.” Plaintiff’s husband was a poor man, without trade, profession or shelter. She got bread and clothes from defendant, who supported her and family for a long time. Can it be said that her’s is not a natural obligation ? C. C. 243. To bring the action condictio indebiti with success, the thing sought to be recovered should not have been given in consequence of any natural obligation. Poth. vol. 5, p. 108, 109.
    The plaintiff obtained credit with Provost, the defendant, by her repeated promises to pay him with the share of her father’s estate, as the two transfers will show. The language of Judge Bullard in the case of Ailing v. Eagan, 11 R. R. 246, is applicable here. He says: “ It is hardly necessary to say, although it does not appear to be universally known, that married women are as much bound to be honest as their husbands, and that it is equally incumbent on them to come into court with clean hands.”
    This Supreme Court has held that the law will secure, honestly and fairly, the rights of the wife without convex-ting it into a weapon to strike down the rights of her ereditox-s. “ Deceptientibus mulierebus senatus consultum auxilio non est.” Ulp. book 29.
    
      5. Art. 2412 of the Civil Code was intended for the protection of the wife •, but if it be held to prohibit her from binding herself under circumstances like these, the humane intenlion of the law is defeated, and this provision is converted into an instrument of oppression to her, by withholding from her that credit which is so often, as in this case, indisponsible for her own comfort and that of her family. Such a construction cannot be correct.
    A judgment so subversive of the principles of law and moral honesty cannot, We are confident, receive the sanction of the Supreme Court, but will be reversed. But should this tribunal be of a different opinion, then the defendant will at least be entitled to have the case remanded, with permission to the plaintiff to show what part of the consideration for the transfer was received by her husband and did not inure to her benefit. The onus probandi- devolves on her, and she must establish her case by proof, or the authentic act will be held binding on her to its full exteut. Hughs v. Harrison, 7 N. S. 251.
   The judgment of the court was pronounced by

Slidell, J.

This is an action by a married woman to annul an authentic act executed in March, 1849, whereby she transferred to the defendant her interest in the estate of her deceased father. The consideration stated in the act is : 1. That the defendant had at different times advanced to the plaintiff a quantity of goods and articles of divers kinds, which she acknowledges, in the act, she had employed for her personal use and the support of her family. 2. That the defendant had, on the 31st March, 1848, paid to Jl. Laban a promissory note made by her husband in 1847, being for the first installment of the price her husband had bound himself to pay for a negress slave and her child, which the plaintiff acknowledged she had in her possession, and which she needed for the use of herself and family. And lastly, that the defendant, in July 1847, received another promissory note of her husband, being for value received in inerchandise, which the plaintiff acknowledged to have used for herself and family. The act obligated the defendant to surrender to the plaintiff any surplus there might be after applying the money which might be realized from the interest assigned to the payment of the enumerated debts.

Mrs. Provost does not appear to be separated in property from her husband. All the debts were, in their origin, debts of the community. The credit was given expressly to the husband in the case of the two last items, and there is nothing but the wife’s acknowledgment in the act to show that the goods mentioned in the first item were furnished to her. The act itself does not purport to declare that they were given upon her separate credit. Under the evidence, there is no doubt that the assignment was an attempt to apply the separate property of the wife to the payment of debts of the husband, which the law forbids. C. C. 2412. See also Patterson v. Thayer, and the cases there cited.

The judgment of the district court is therefore affirmed, with costs.  