
    
      MUSSON vs. OLIVIER.
    
    Appeal from the court of probates of New-Orleans.
    Common property ;ul-judicitcrl to the surviving husband or wife, cannot he relieved from the mortgage the Jaw lays it under, by the substitution of another mortgage on other property.
   Porter, J.

delivered the opinion of the court. The petitioner states that, by virtue of a deliberation of a family meeting of his minor children, the court has accepted a special mortgage for the sums which the petitioner owes to his children as their tutor; and that he wishes to change the mortgage, and give it on other property of equal value.

He prays a convocation of a family meeting 1 J for this purpose, and a citation to the under tu-11 _ tor to appear and assist at the deliberations of the meeting.

The judge ordered the relations of the minors to assemble, and deliberate on this proposal; audit being approved of by them, the under tutor filed an opposition, in which he stated, that the change about to be made would deprive the minor children of a special mortgage which they have by law on the property owned in common with their father,and which was adjudicated to him under the second section of a.law of 18th March, 1809.

Notwithstanding this opposition, the court of probates homologated the deliberation of the family meeting; and the under tutor appealed.

The case has been submitted without argument, and left to our own enquiries and reflexion: we h'.ve been unable to find any thing which will permit us to confirm the judgment of the court below. The act of 1809, which authorises the adjudication cf property held in common between husband and wife to the survivor, provides that the property so adjudicated shall remain specially mortgaged ana affected for the security of the sum that may be J due to the minor heirs. 3 Mart. dig. 128.

With such an express command of the Ie-1 gislator, we do not see whence is derived the authority to raise the mortgage. If it can be done because other property is offered to be hypothecated in place of it, might it not be done also on good personal security which the family meeting should approve? The power once admitted, the only question which could remain would be that of expediency.

An examination of the acts of the general assembly, subsequent to that just quoted, has convinced us that the legislature never contemplated the exercise of such power by the family meeting and the judge of probates.

In the year 1817, it was enacted that the family meeting who authorise the adjudication to the surviving father, or mother, may determine what part of the property shall be mortgaged. But it neither speaks of, nor contemplates, the case of removing the special mortgage when once acquired. Acts of 1817, 122.

Again: In the year 1824, we find a law authorising the husband to raise the legal mortgage in favor of his minor wife, by giving a special one. The law which gave that general mortgage, was not more positive than that which confers on the children a special one on 1 their property purchased by their father or mother: and if positive law were required to do away the effect of the former, we have sought in vain for any reason why it is not equally necessary in the latter.

Still farther, and more conclusively, we see that, by an act passed in the year 18*26, it was deemed necessary to provide, that in case one of the children came of age, and could not he paid but by a sale of part of the property adjudicated, so much thereof as was necessary to effectuate this object might be sold; and on this portion the mortgage of the other children should not attach, provided other property was substituted in its place sufficient to secure them. If the mode now attempted of removing mortgages in favor of the minor be correct, the law was unnecessary: for if the claim of all the minors can be transferred from one object to another by the advice of a family meeting, it might without the anthorityof this statute have been changed in respect to any one of them.

We think the judgment of the court below erroneous; that the opposition of the under tutor should have been sustained.

It is therefore ordered, adjudged and decreed, that the judgment of the court of po-bates be annulled, avoided and reversed; and jt jg furt|,er orde red, that the opposition to the homologatton of the proceedings be sustained, and that the appellee pay costs in both courts.  