
    
      VIALES vs. VIALES' SYNDICS.
    
    Appeal from the court of the parish and city „ -»T #-» i / ot Alew-Uiieans.
    The payment ofthe whole dowry wil! not be presumed ty^Ahe^us-drcumstanceof respective es-tales for the performance of ⅛ the marriage froAa'part of raWe property ⅛’hiscre&tws
    The piaintiif claimed twenty-three hundred doll ars, as her dowry. Her husband had not acknowledged the receipt of any part of it, in ¿j)e marriage contract : her mother had therein ° ⅜ declared, that it consisted in that sum, viz. SfiOO her sh re of her father’s estate, 81000 in cash, a slave of the value of 8600 and Si00 in furni-cattle.
    The slave was proveu to have been the pio-perty. of the plaintiff, before her marriage, and was identified as part of Viales’ estate, in the hands ofthe syndics. Witnesses deposed that she was entitled to 600 dollars, as her part of her father’s estate; bat there was no evidence of that sum having, been paid : neither was there any as to the other articles of the dowry, except what resulted from the admission of the husband in his bilan. ' •
    
    The parish 'court gave judgment in favor of the plaintiff as to the negro only, with costa. She appealed.
    
      Moreau, for the plaintiff.
    Tha Spanish law recognised J;wo kinds of dowry : that which i« counted and delivered, in the presence of the notary and witnesses, and mentioned, in the marriage contract, and hence called trap or counted dowry, verdadera o numerada$ and that which is proven only by the confession or acknowledgment of the husbaud, hence called confessed or putative dowry, confesada o putativa ¿ote.
    
    The first was a privileged debt, in regard to creditors of the husband, whether their claim was posterior or anterior to the marriage, and the declaration in the contract, that it had been counted and delivered in presence of the notary and witnesses, was conclusive evidence against the husband, his heirs or creditors. >
    With regard to the priviledge of the debt, says Febrero, we must distinguish two cases: the one when the dowry is true and counted, the other when it is only acknowledged, and there is no other proof of its delivery. In the first, when the wife concurs with a creditor of her husband, without fraud or simulation, she is to he nrefer- . r -a red, tor her tacit mortgage, to all creditors ante-' rior to the marriage, with a general mortgage, and to posterior ones, with a special one, although hers be only a general mortgage. 7 Fe-brero, adicionado, S, 3, 3, §, 2, n. 132.
    It is of this priviledge, that mention is made in! the part of the Caria Philipicu,, invoked in the parish court by the defendants’ counsel.
    Likewise, the priviledge of the true dowry, which is that which is real, is not extended to the putative, or that which is held for such, without being really so, according to a text, Alexander & Acevedo. Curia Phil.p. 427> n. 37.
    It follows that the priviledges, granted by, the law to the dowry, attend only that, the counting and delivery of which appears to have taken place before the rtotary and witnesses, by the marriage contract, or when the counting and delivery is established by a contradictory judgment. It is otherwise, when the receipt of the dowry is simply acknowledged by the husband : and this acknowledgment, even when made under oath, does not preclude the claims of his creditors antetior and even posterior, thereto; and It -is presumed to have been made in fraud, according to Baklp Nóvelo, Antonio Gomez, Covarrabias and Alvaro Baez. Id. 38.
    
      t The defendants* eounsél relied on these two passages, in ortler io repel the plainíifl’s claim to a preference, because it does not appear from her taarriage contract, that her dciwry was counted anfl delivered ⅛'Viales, in the presence of the notary and witnesses. , v‘
    Thef counsel has thus confounded two kinds of priviledges, which are perfectly'distinct.
    The effect of the fiifst is to give the wife & preference,‘even over creditors anterior to the taarriage, who have no special mortgage. This kind* of privileétó^-t^ttends only the true and counted dowry, is of it that mention is made, in thepassagjes just cited from the Curitk Philipka. v -
    The effect of* the second was to give to the wife a tacit mortgage, which the laws of this state have expressly given her. Code Civ. 333, art. 53. It extends to both kinds of dowry,— the true and counted, and the confessed or pu-¿ative. .
    The wife has a tacit mortgage for her dowry on the estáte of her husband, from the day on which he received it, according to Partida 5, •43, S3, ⅝⅛ well as for her paraphernal property, which lie received from heiy .according to Por-; iida % 11, 17. Car. Ph. 363, n. S6. ,'
    Febrero, speaking of the proof of the delivery of the dowry by the acknowledgment of the husband, distinguishes two cases : that in which this acknowledgment results from an authentic instrument, anterior to the marriage, and that in which it is contained in an instrument posterior thereto.
    ‘After noticing the priviledge of the counted and true dowry he adds,: “Having treated of the first point proposed, in n. 13S, it is proper to treat of the second, viz. of the dowry, acknowledged by the husband in a contract or in a will executed before or sb^e the marriage, of which I have said somethin 1n l. 1, ch. 8, n. 86 8f 38, to which I refer the reader. On the last pdínt, I observed that in order well to understand it, two cases are to be distinguished : that in which the wife or her heirs claim the restitution of her dowry from the husband’s heirs. In thia case, according to a learned jurist, a rigorous proof of the payment of the dowry is not required: light proof will suffice. The second is when the wife acts in 'opposition to his creditors, seeking a preference over them : in this, conclusive evidence is required.
    “ In the first case, the acknowledgment of the husband in a contract anterior to the marriage, is conclusive against him and his heirs. They have no greater priviledge than he ; and, as his representatives and successors, in his actions active or passive, they ought to be bound and abide by his contracts.” 7 Febrero adicionado, , S, 3, 3, § 2, n. 136 & 137-
    The author next examines , the effect of the husband’s acknowledgment, in regard to his creditors.
    
      te If the husband acknowledges to have received the dowry, By an instrument anterior to the marriage, his acknowledgment will bind his creditors ; because marriages are not ordinarily done without a dowry, unless when the contracting parties are peor; and it is probable that the dowry was counted and delivered according to the acknowledgment of the husband, wjiich is not'suspected of fraud ; the case is much stronger, when the exception non numerate pecu-niae is renounced.
    
      “ If the acknowledgment was preceded by a promise of the dowry, made in an authentic instrument, distinct from the one which contains the acknowledgment, it will prove the delivery of the dowry, whether made before or since the marriage, and conclude not only the heirs, but the creditors, of the husband.
    “W^lien the acknowledgment is made during the marriage, without there being any previous promise* the wife will exclude mere chirographs-ry creditors, even anterior ones : because every thing else being equal, the wife has a privi-ledge for the restitution of her dowry, as well on account of her hypothecary action, as the personal one ; and she will be preferred to creditors, who have only the latter.
    But if anterior, acknowledged creditor^ ground their claims on the acknowledgnjent of the husband, as in'the case of a deposit, sale., or other convention, neither a |oan, nor made during the marriage, they will be preferred "to the wife, because their claimb are equal to that of the dowry, as long as the exception non numerate pecuniae, cannot be opposed to them; according to the rule qui potior est in temporef potior est in jure, their claims ought to pass before that of the acknowledged dowry ; because, in such a case, the common and general right ought to prevail over the speciil. For the same reason, if the acknowledgment of the receipt of the dowry, which has preceded the marriage, be anterior to the claim of the creditor, the right of the wife will prevail*. Not so, if the acknowledgment be posterior to the marriage; because, then the husband is presumed to have intepded to favor her, to the injury of his anterior chirographary creditors.
    
      “ The acknowledgment of the receipt of the dowry, during the marriage, without a previous promise, does not preclude' anterior hypothe- ... , . . . , , cary creditors ; being presumed to have been made in fraud of them. Posterior ones had the benefit of the exception noil numerates pe-eunice. When the period, during which this exception avails, is passed, this right is viewed in different ways by the authors : but, as this is not the’case in the present instance, the question will not be examined.” 7 Febrero adicio-nado, 3, 3, § S. n. 463 158..
    It appeaVs .evident from the above quotations, that the ácknówledgment of the receipt of the dowry,in an instrument anterior tdthe marriage, without any counting or delivery of it, in the presence of the notary and witnesses, may affect •hypothecary creditors.
    We have only to inquire, then, whether the marriage contract of the plaintiff contains the acknowledgment of her husband, that he received the property, which she brought in marriage. lf .it does, whether the property be do-tal or paraphernal, she most be preferred to her husband’s creditors,hypothecary or chirographa-ry, who are alj presumed to be posterior to the toarriage ; since none of them has shewn that he was anterior. ⅜
    The contract does not, it is true, contain a receipt for the property of the wife, but a close attention to the expressions made use of, Will . , ... , convince, that this is tobe attributed to a want of attention in tbe person who drafted it. It js impossible to presume that Viales did not receive tbe property at the execution of the instrument, Or immediately after. He begins by{ a declaration, that he possesses nox property : hi* wife’s mother, on the contrary, declares that the young lady possesses 2300 dollars, and de-dares in what objects. Is it possible to suppose, that the husband did^not receive the property in 1814, when he had not any thing to subsist upon ; and when, the slave brought by the wife in marriage* was found among the property in his possession at the time of his failure ? a period at which, he was possessed of considerable property.’* Besides, if the property was not then delivered to him, why did he give the mortgage mentioned iri the marriage contract ? If he received nothing, why give security ? It is therefore clear, that the mortgage can only be intended to secsure the property brought in marriage by the wife, since the contract contains ho other obligation on his part, than that which might result from the delivery of that property.
    This is not an indifferent circumstance, in a case like the present; „
    
      (( When the acknowledgment of the husband” says Febrero, .« is supported by adminicules of proof, it proves completely thei delivery of the dowry, and enables the wife to claim itsrestb tution from the creditors of her husband, and it will be reputed a true dowry, verdadera dote⅜ Therefore, they will not have the exception non numerated pecuniae against, her, W* understand by the expression, confession supported by adminicules of proof, that which is attended with circumstances which cause.it to be presumed. These adminicules result from the consideration of the quality and situation of the parties, and other circumstances which induced a belief of the truth of what is contained in the acknowledgment of the husband. Ill matters like these, conjectures drawn from facts and persons are very powerful- Those conjectures, are generally drawn from a promise of the dowry, before the acknowledgment, from the payment of some of the objects constituting the dowry, although not -precisely made as part of it, for w]ien a part of the dowry appear& t&have been actually paid, payment of the whole is pre* sumed. 7 Febrero adicionado 2, 3, 3, § ⅞. w,; 1⅞9.
    It may perhaps be contended here, as is. the parish court, that the property brought by the plaintiff, was not constituted in dowry, and so the restitution of them cannot be claimed with the pri^iledges of dotal property. Whenever the marriage is contracted, as in the present case in verbis de futuro, property brought in marriage is reputed dotal. Id. n. 132. Curia Phi-lipica, 4áü. n. 36.
    
      Carleton, for the defendants.
    The plaintiff, aware of the necessity of proving that she had actually brought into marriage and delivered to her husband the sum claimed by her, and that her marriage contract would not, of itself, make proof of that fact, sent a commission to Pointe Coupee, to take the testimony of witnesses residing theré. Two persons were examined, both nephews of the plaintiff, who declare that they have known her u as long as they can remember,” that they do not know that she ever possessed any other, property than the negro Joseph, mentioned in the marriage contract; and that there was a sum of six hundred dollars, due her, from the estate of her father; but cannot tell whether she ever received it. There is no evidence, that she ever possessed any other property; or, if she did, that it was ever delivered to the husband. ^ '
    The husband does not declare in any part of it, that he ever received any property into his possession, nor does any one declare it for him ; neither the subscribing witnesses, or the notary, know of its delivery to him. The mother, then is the- only person from whom we learn that the daughter possessed any other property, than the slave ; and even she does not say, that any of it ever came into the possession of the husband. The declaration of the mother can be of no avail, as she could not have been heard in court in behalf of her daughter, had she appeared at the trial; much less then, can the court listen to her ex parte declaration, not delivered under oath. But the plaintiff ’s counsel having erroneously assumed it, as a fact, that the husband confesses, in the marriage contract, be had received the sum, claimed by his wife, then la-lÉAs to shew that such confession makes proof against the creditors, where the contract is made anterior to the marriage. But he says in his petition, that, the plaintiff was married to L. Vialez on the 13th May, 1804, the very day on which the marriage contract was executed and. dated : this reasoning then cannot apply, even if the husband had made such confession, as the marriage and contract were entered into on the same day. It is however acknowledged by the plaintiff’s counsel himself, that no such confession is contained in the contract, which, he says was executed before marriage.
    Hitherto, the property said to have been brought by the wife in marriage lias, for argument’s sake, been called a dowry. Yet that word does not appear in the contract; and the Spanish laws then in force,, quoted by the plaintiff’s counsel, declare:
    “ Likewise, in order that the dowry may be priviledged, it must be constituted in express terms' when the marriage is contracted- — in pre-sentí, by saying, ‘it is given and received as a. dowry for if it is not so expressed it will not be a dowry, nor can it enjoy any preference notwithstanding the wife had brought her estate into marriage, and delivered it tp her husband ; because the wife by contracting by words*^. presentí, is not considered as giving her estate in dowry, unless il be expressly said so,” &c.
    As we learn from the plaintiff herself, in her petition, that the marriage was celebrated on the very day on which the contract was executed, this law entirely defeats her claim, unless what she brought into marriage had been expressly declared to be a dowry.
    But the plaintiff’s counsel says, the marriage was contracted in verbis de futuro, and therefore les biens apportes, the property brought in is to be held dotal, and cites Cur. Phil. 420, n. 36.
    That this law might fit the case, it was at least necessary to shew that the wife did' actually bring into marriage what she claims.
    Let us suppose however, if we can, that a marriage celebrated, on the same day as the marriage contract, is a marriage contracted in verbis de futuro. The law cited declares, that
    “ When the marriage is to be contracted in futuro, or where there is a promise of marriage, if the wife be rich, she is presumed to have tacitly promised her estate in dowry, and will, in that case, enjoy a priviledge, according to Baldo, unless the husband himself be rich, and had sufficient for his support; for there the wife is not presumed to have promised her effects in dowry, nor consequently will she enjoy a priviledge for the same, according t@ Covar-rubias.”
    There is not a syllable of testimony on record, to shew that the wife was rich at the time of the marriage, or that she possessed any other property than the slave Joseph. The law cannot apply but by assuming, for proved, th* very fact in dispute, viz. that the wife possessed and delivered to the husband the property ' . * mentioned in the marriage contract.
    Having, as I conceive, entirely overthrown every position taken by the plaintiff’s counsel, I proceed to cite some authorities which, I presume, will fully satisfy the court that the plaintiff cannot recover unless she had proved the actual delivery to her husband of the amount by her claimed.
    Likewise, the priviledge enjoyed by the dowry that has a true and real existence, is not extended to the putative dowry, which is that which is called a dowry, but which is not so in reality, according to a text and Alexandro and Gomez. Cwr. Phil. 420, n. 3.
    
    From which it follows, that the priviledge conceded by law in favor of the dowry, takes place only where the money is counted and delivered before the notary and witnesses to the instrument in which it is mentioned, or by proof of the same contradictorily in court, and not by the sole confession of the husband ; for his confession that he had received it, though made under oath, cannot prejudice those who are there, or who become his creditors thereafter, nor their heirs ; fcr it is presumed to be made in fraud according to a glossary, the opinions of Baldó Novelo, Antonio Gomez Covamibias 7 and Baez. Id. n. 38.
    The estate being formed into a mass, in the manner above explained, proportional deductions must be made from it: and first must be deducted the legitimate and real dowry, which has been counted down, and which the wife legally proves she brought into marriage, and delivered to her husband. 4 Febrero, 1, 3* § 1. n. 4.
    Having explained in what manner the legitimate dowry, which had been counted down, ought to be deducted, I proceed to speak of the dowry that is confessed: and I say that, if the delivery of the dowry appears from the mere confession only of the husband, made by testament or last will, since marriage and after he had taken his wife to his house, such is not, nor can be esteemed as a dowry; for the confession, whether it be for a certain sum, or other property, makes no proof, but, on the contrary, is presumed to have been made with the intention to give the amount as a legacy, to be confirmed at his death, and though the confession be under oath, it can prejudice neither his creditors, nor his legitimate heirs. Id. n. 36.
    Finally 1 ask, if the confession of the husband that he had received the dowry, proved its re cepti°n> and whether such dowry would enjoy the same pri vil edge with that, which had been. » really and truly received and counted. On this point, I briefly and decidedly say, no: for after the dissolution of the marriage, either the hus‘ hand or wife may oppose the exception of non numerate dotis, and the wife or her heirs, would be bound to prove its actual counting and delivery; otherwise, the husband’s confession would avail nothing, whether it were made before witness, or private or by public act.
    And the reason why such confession cannot prejudice the husband, and why he may make the foregoing exception, is two fold: the first, because not having the wife in his power he is presumed to make the confession, that he may the more quickly obtain her: and secondly, that he may thereby appear more liberal to her relations; and this holds good even when the confession was made under oath.
    To this the commentator might have added another and still more powerful reason: that of securing alivingtohimself and family, incaseof future misfortune. It is a common practice in Louisiana, for men to acknowledge by their marriage contracts, that their wives brought to them immense sums, which they neverpossess-ed. This is done under the belief that, the wife becomes thereby a priviledged creditor, who may in time of need, provide for herself and husband, out of any property that may pass through his hands. But I trust that the law above cited has fully shewn the fallacy of this opinion,andthatit has been most clearly shewn that the confession of the husband, whether made beforeor after marriage,cannot prejudice even himself, or his heirs, and for a stronger reason cannot affect third persons.
    I beg leave once more to remind the court, that even this confession of the husband is no where to be found; and that therefore no proof whatever has been produced by the plaintiff, shewing that she brought into marriage any other property than the slave, Joseph, and agreeably to the decision of this court in the case of Nadaud vs. Mitchel, 6 Martin, 688, the wife cannot recover more than what she proves she brought in as her dowry.
   Martin, J.

delivered the opinion oflthe court. The plaintiff demands therestitution of a dowry of twenty-three hundred dollars, which sheal-ledges to have been received by her husband. The defendants deny that he received it. She produces her marriage contract, in which her mother declares that the property of the future wife, her daughter, consists for the present in a 7 3 7 1 sum of 2300 dollars, viz. 600 dollars her share of her father’s estate,1000 dollars in cash, 600 dollars in a slave, and 100 dollars in furniture and cattle. The future husband declares he has no property. The future husband and w ife make a reciproc aldonation of the usufruct of the property of the one who may die first to the survivor, and for the performance of the contract, bind their respective estates present and to come. The plaintiff shewed that the slave made part of the property surrendered by her husband to his creditors. She had judgment in the parish court for the slave and costs, and appealed.

Her counsel contends that the paymeid’of the dowry ought to be presumed, from the circumstance that the husband had no estate to support the family, from that of his having bound his property present and to come, and from a part of the dowry, viz. the slave, being proven to have been received by him, since he is part of the property surrendered.

We cannot say that the parish court erred. It is clear that no part of the property was in the possession of the insolvent, at the execution of the contract. The first item was a sum due the wife; the 1000 dollars are stated to be in the possession of the wife, as well as the rest of the property enumerated. It is true l,e bound his property for the due execution of the contract; so did the wife, yet it cannot be pretended, that she received any thing. The presumption which rises from the need in which the husband appears to have been of receiving his wife’s dowry for the support of the family, is not sufficient to produce the conviction of his having been successful in obtaining it, even where coupled with the circumstance of his having been in possession of considerable property, at the time of the surrender. Whatever may be the amount of the property so ceded, it is not pretended to be more than that of his debts, and he owed only what he had received. Where there is an acknowledgment of the husband that the dowry w as received, proof that a part of it came to his hands, may raise such a presumption that the whole did, as will repel the exception non numerates pecuniae; but in the present case, the parish court acted correctly in allowing to the plaintiff the slave, as the only part of the property of the wife that came to the hands of the insolvent.

It is, therefore, ordered, adjudged and decreed that the judgment be affirmed, at the costs of the plaintiff and appellant.  