
    No. 4990.
    Aimee Jumonville, wife of E. Vives v. A. Jackson Sharp.
    The delay to record an act of salo can not defeat the vendor’s privilege and mortgage in favor of a creditor of the vendee wlio held a legal or judicial mortgage against him, if the mortgage and privilege were recorded at the same time with the act of sale.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Flagg, J.
    
      J. B. Whittington, for plaintiff and appellee. Q. Schmidt, for defendant and appellant.
   Howell, J.

This is a hypothecary action, by which the plaintiff seeks to enforce the judgment she obtained against her husband, upon property in the possession of defendant and subject, as she alleges, to her legal mortgage.

The defense is that her judgment is a nullity, having been obtained by fraudulent collusion between herself and husband, and not having been executed for two years after rendition; that a portion of it is slave consideration, and that her mortgage has not been registered. From a judgment in favor of plaintiff the defendant appealed.

The plaintiff’s judgment against her husband, and which she seeks to enforce against the defendant, is for $7300 60, with five per cent, interest from the seventeenth of September, 1867, and mortgage for $500 from the first of April, 1854,- $431 25 from the third of April, 1858; $431 25 from the third of April, 1859; $431 25 from the third of April, I860; $5113 87 from the eighteenth of February, 1861, and $392 98 from the thirtieth of April, 1861.

The evidence sufficiently establishes the validity of plaintiff’s judgment against her husband as to the amounts and dates, its execution and registry, and the only serious question relates to the want of authority in the wife to institute either the suit against her husband or the present action. This question of authority was not raised in the lower court. As to her authority to prosecute this suit, we find in the record an appearance by the husband for the purpose of giving such authority, which is sufficient. In regard to the suit against her husband, there is no order of the judge authorizing her to institute and prosecute it, as she specially prayed; but, as held in the case of Le Blanc v. Dubroca, 6 An. 360, article 105 C. P., making such authorization necessary, is intended to protect the husband against unadvised and vexatious family suits, and, being an exception in his favor, does not afford ground for annulling a judgment against him in a controversy between his creditors and his wife. We are disposed to adhere to this view, and we do not think such interpretation of said article is a judicial annulment of the law, as contended by counsel.

The question of slave consideration does not seem to be pressed be.fore us; but the evidence does not satisfy us that any part of the wife’s claim, as allowed, was for the price of slaves.

Her mortgage was duly recorded before 1870, which preserved it as it existed from the dates fixed in her judgment, and the act under which defendant’s author acquired his rights, not having been recorded before her mortgage operated upon and attached to the land in question, her mortgage takes preference. See 20 An. 79.

The judgment in this case, however, has given the plaintiff more interest than she is entitled to, and several items not embraced in her demand, in which respects it must be changed.

It is therefore ordered that the judgment appealed from be set aside and proceeding to render such judgment as should have been given below, it is ordered that defendant, A. J. Sharp, be condemned to pay the plaintiff the sum of seven thousand three hundred dollars and sixty cents, with five per cent, thereon from the seventeenth of September, 1867, and costs in the lower court, and in default thereof that the property described in plaintiff’s petition and now owned by the defendant be seized and sold under plaintiff’s mortgage for $500 from first of April, 1854; for $431 25 from the third of April, 1858; for $431 25 from the third of April, 1859; for $431 25 from the third of April, 1860; for $5113 87 from the eighteenth of February, 1861, and for $392 98 from the thirtieth of April, 1861, and costs below. The costs of appeal to be paid by plaintiff and appellee.

On Rehearing.

LudeliÍstg, C. J.

This is a contest between the plaintiff, who is trying to subject, to her legal mortgage a plantation in the possession of the defendant, a third possessor.

The facts, disclosed by the record, are that the plaintiff has a judgment against her husband, Edward Yives, for a large sum of money, and to secure this sum she has a legal mortgage against the property which may have been owned by the husband since the existence of her claim. The property in the possession of Sharp was sold to Edward Yives in 1861, and a mortgage and vender’s privilege were retained on the property. The act of sale was not recorded till 1866, at which time the mortgage and privilege were also duly recorded in the parish where the property is situated. This property was seized and sold to pay a part of the price, secured by the vendor’s privilege and mortgage, and the vendee at that sale sold to Jackson Sharp.

After this the wife of Edward Yives obtained her judgment and recorded it. She now claims that her legal or tacit mortgage was superior to the vendor’s privilege and mortgage, and that the property bought by Sharp is subject to her mortgage, because the mortgage and privilege of Dalferes, the vendor of Yives, her husband, were not recorded immediately after the sale.

The mortgage and privilege were recorded at the same time the act of sale was recorded in the records of the parish.

In the case of Rochereau v. Colomb, recently decided, we held that the delay to record the act of sale could not defeat the vendor’s privilege and mortgage in favor of a creditor of the vendee, who held a legal or judicial mortgage against him, if the mortgage and privilege were recorded at the same time with the act of sale.

Eor the reasons given in that case, it is ordered and adjudged that our former decree be annulled, and that the judgment of the court a qua be set aside.

It is further ordered and adjudged that the plaintiff’s demand be rejected, with costs of both courts.  