
    No. 7260.
    Kate G. Stapleton vs. F. Butterfield et al.
    Action to ánnul a sale made under executory process is not an action to annul a judgment, and hence, need not be brought in the same court that granted the order of seizure and sale.
    This is not-an attempt to annul a judgment: plea of prescription of one and two years is therefore not well taken; nor proscription of five years, because in this case prescription was suspended duriug the marriage, as the suit of the wife would have been prejudicial to the husband.
    The note and mortgage both show they were executed by a married woman, without any apparent authorization by the judge, and that the debt secured by the act was for a past indebtedness of the wife; this was sufficient to put any third party on his guard, and open the door to investigation.
    The debt contracted by the wife in this case is shown to have been a debt of the husband: the mortgage and sale of plaintiff’s property in execution thereof are both nullities.
    APPEAL from tlie Fourth District Court for the Parish of Orleans. Houston, S.
    
    
      L. JE. Simonds, for Plaintiff and Appellant:
    1. A married woman is not bound by her mortgage, although purporting to be executed under an authorization from the Judge, unless she actually borrowed money or contracted a debt thereunder.
    2. The Act of 1855, (No. 200) cuts lier off only from pleading that money, actually borrowed, did not enure to her benefit; but from no other defense.
    3. Where the holder of the note of a married woman, which is not binding on her, forecloses the mortgage and himself buys the property, it may be recovered from him by the mortgagor.
    4. Prescription against the wife is suspended during marriage.
    5. Butterfield is not a holder for value, nor without notice of the limited capacity of plaintiff. He parted with nothing for the note. Its proceeds go to pay Falconer’s debt.
    6. The mortgage is assignable only, not negotiable.
    7. Plaintiff was not- a sole trader or public merchant. She was not separate in property. She had nothing to do -with the store conducted by her husband.
    8.. The laws of prescription are inapplicable. The note and mortgage being in violation of a prohibitory law, were absolutely null and void. To have it so declared, it is only necessary to show its character. Prescription is suspended during the marriage. It is presumed the husband would not permit her to sue to annul a contract made to secure his obligation. If prescription be at all applicable, it is that of ten years, under R. C. C. 2221.
    9. The fiat for executory process is not such a judgment as requires an action of nullity. It is not res judicata. Besides, plaintiff does herein sue for its nullity, by supplemental petition.
    10. Plaintiff had a right to cumulate, with her demand for restoration of the property, a demand for the revenues and accumulated taxes.
    
      W. B. Koonts, for-Defendants and Appellees :
    1. An action to annul or rescind a contract is prescribed by five years. R. C. C. 3542. To annul a judgment or decree of a court of competent jurisdiction, the action is prescribed by one year. C. P. 611, 613.
    2. An action to annul a judgment or decree of court must be brought before the court that rendered it. C. P. 608. And the institution of a suit in a court that has no jurisdiction is null; and the subsequent investiture of jurisdiction will not-cure the nullity. 21 An. 754; 26 An. 37; 28 An. 568.
    
      3. A third holder, before maturity, without notice, and for value, of a note and mortgage of a married woman, executed in accordance with the Act of 15th March, 1855, is not affected by any equities which may exist between her and her original creditor. 26 An. 418, 324 ; 28 An. 232.
    4. The effect of the Act of 15th of March, 1855, is not simply to shift the burden of proof from the creditor to the debtor. The married woman who takes the benefit of the Act, is hound as though she were a single woman. 15 An. 54; 21 An. 283 ; 26 An. 201, 418; 30 An. 790, 793; 32 An. 1197.
    5. Upon complying with the formalities of the Act of 1855, the contracts of married women furnish proof against them, unless attacked for fraud, and in a contest with the creditor, by whom the fraud was committed. 30 An. 790; 28 An., (not reported) O. B. 45, p. 407; 31 An. 834; 32 An. 1104. 1200.
    6. The action is prescribed. R. C. C. 3542.
    7. The Court was without jurisdiction ratione materia. 21 An. 754; 26 An. 37 ; 28 An. 568.
    3. A third holder of a mortgage bote without notice, is not hound by equities existing between the maker and payee. If plaiutiff alleges fraud, the holder must be shown to have had knowledge of it. 28 An. 232: 30 An. 790 ; 31 An. 834; 32 An. 1104 ; 32 An. 1200.
    9. There is no variance between the authority to borrow and the act which secures the money borrowed.
    10. One is a third holder for value, who takes the note in. payment of a pre-existing debt, or even as collateral security. Story on Promissory Hotos, § 195; Chitty on Bills, p. 85; 21 An. 555.
   The opinion of the Court was delivered by

Poché, J.

The object of this suit is to annul a note of $10,000 and a mortgage to secure the same, executed on January 4, 1867, and to set aside a sale under executory process, in execution thereof, of plaintiff's paraphernal property, on the grounds that the debt represented by the note was not a debt of the wife, but of her husband; that the mortgage was the result of fraudulent collusions between her husband and his creditor, the mortgagee, and that the act of mortgage was not made in conformity with the Judge’s certificate, authorizing plaintiff to borrow $10,000, and to secure t.lie same by mortgage on lier separate property.

Tiie defense was:

1. An exception to the jurisdiction of the court.

‘2. Tlie plea of prescription of one, two and five years.

3. The general issue.

First. The exception to-the jurisdiction of the court, on the ground that the object of the suit was to annul a judgment rendered by a different tribunal, was not well taken. The order of seizure and sale is not a judgment, in the legal sense of the term; it adjudicates no rights not conferred by the act of mortgage, and only authorizes the execution of an act importing a confession of judgment, and, therefore, the action to annul a sale, made under executory process, is not an action in nullity of a judgment. 16 L. 250, Harrod vs. Voorhies; 19 A. 158, Humphreys vs. Brown et al.

Second. As this is not an attempt to annul a judgment, the plea of prescription of one and two years cannot avail the defendants. Nor is-the prescription of five years, under Art. 3542 of the Civil Code, applicable to this case, because prescription was suspended during the marriage, for the reason that the action of the wife would have been prejudicial to her husband. If the debt secured by the wife’s mortgag ■ be decreed not to be her debt, it becomes a debt of the community, or of the husband as the head of the community, and hence, the discharge of the wife from the obligation would throw the burden on him, and thus it is clear, that her action to that end is prejudicial to her husband. C. C. 3525.

An examination of the act of mortgage of January 4,1867, shows that the act does not purport to be made under the authorization of the Judge, to which no reference is made in the whole act, and that the debt secured by the act is not stated to be for a loan made at the time, but the act itself purports to be for a past indebtedness of the wile. The note and the mortgage both show that they were executed by a married woman, and were, therefore, sufficient to put a third person negotiating them on his inquiry. Therefore, Butterfield, the holder, cannot estop plaintiff from alleging and proving that the debt contracted by her did not enure to her separate benefit, but was in reality her husband’s debt, which she was induced, by fraudulent misrepresentations, and under marital influence, to assume and to attempt to secure by the mortgage on her separate property. 5 An. 496, Gualin vs. Matherno; 6 An. 122, McComas vs. Green; 7 An. 145, Pilcher vs. Kerr; 29 An. 124, Conrad vs. LeBlanc.

The inquiry into the real consideration of the note was, therefore, a proper subject of investigation under the circumstances of this case.

The evidence shows, beyond a doubt, that no loan of money was made to plaintiff by Falconer, the mortgagee, at the time of the execution of the mortgage, or at any time previous thereto ; and that the debt represented by the note and mortgage was part of a series of notes amounting together to $40,000, executed by plaintiff several years before, as the purchase price of a lot of goods purported to have been purchased by her from Falconer, the mortgagee.

It further appears from the evidence, that plaintiff was not a public merchant or trader, and not separated in property from her husband, and that, therefore, the debt thus contracted was in truth and in fact a debt of the community, or of the husband.

It follows, therefore, that the mortgage obtained from her on January 4, 1867, was an absolute nullity, as a contract made in direct violation of a prohibitory law, and that the sale of her property, made in execution thereof, is also a nullity.

The judgment of the lower court in favor of defendants is, in our opinion, erroneous, and must be set aside.

It is, therefore, ordered that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the note and mortgage executed by plaintiff on January 4, 1867, be declared null and void, and that the sale of her property described in her petition, made in execution of said mortgage, be and the same is hereby annulled and set aside, and that the right of plaintiff to recover rents and revenues, and to sue defendant Butterfield for unpaid taxes, be reserved; costs in both Courts to be paid by the defendants.

Rehearing refused.  