
    
      BOURCIER vs. LANUSSE, ante 581.
    East. District.
    
      June 1815.
    Moreau, for the defendant.
    The question submitted to the Court in this case Was whether Madam B ourcier, who sold jointly with her husband several slaves and other property held in common by them, to Paul Lanusse, may causer the sale to be rescinded, on the hypothecary action which she has against the estate of her husband, for the reimbursement of her dowry.
    I.The marriage contract, though it was executed in Louisiana, ought to be regulated by the custom of Paris, to which the parties expressly subjected themselves.
    1. Ge n e r a l l y the effects of all, contracts are settled by the laws and usages of the places where they are executed. Civil Code 5, art. 10. Partida 3, tit. 14, law 15. Huberus, translation 3 Dallas 371.
    2. But*this rule receives a limitation, when the parties contemplated another country, than that where the contract was executed. Huberm ibid 3. Dallas 374.
    3. In marriage contracts the parties are at liberty to"make such agreement as they please, even contrary to the laws and usages of the place where they are : provided the said agreement be not repugnant to good morals. Civil Code 322, art. 1. Partida 4, tit. 11, law 24. Pothier on com-
      
      rnunitu of goods between husband and wife in the preamble of the work, 1 and 2 French Pan-dectes 222 to 224.
    4, Parties may even subject their ■ marriage contract to the laws of another country different in its custom, from that where the contract is executed. Civil Code 232, 233, art. 2, 3, 4. Po-thier, Community of goods, no. 282, 285 and 286, p. 335, 338 and 339. French Pandect.es 283 to 286. 3 Discussion on the French Civil Code, 36 to 39.
    5. The Spanish laws are not repugnant to that liberty. Partida 4, tit. 11, law 24.
    II. By the custom of Paris, the wife, who sells some property jointly with her husband, is deemed thereby to have renounced ipso facto to her right of mortgage on the thing'soid, and she could not afterwards attack the sale, under the pretence that her husband had left no property to reimburse her dowrv. Jousse in his commentaries on the Custom of Paris. See his notes on the 232 art. of that Custom, vol. 2, p. 52 and 53. French Pandectes, num. 159 and 163, p. 193, 194, 199 and 200.
    III. By the Spanish laws the express renuncia* tlon of the wife, to her right of mortgage, was only required when a sale was made by the husband of his own private property or of the dotal property or paraphernalia of his wife.
    Not a Word of the sale of the property held in common. Not a word of the sale that was made bv the wife jointly with her husband. 1 Febrero Juicios, book lii chap. 3, $ 1, number 40, 41, 46 and 48, p. 197, 200 and 201. 2 Febrero Con-tratos, chap. 4, ⅞ 4, num. 12, p. 114.
    But by the Civil Code the Spanish law was in some degree altered.
    The wife cannot alienate her private property, but with the consent or authority of her husband. Civil Code, 29, art. 39.
    The wife may sell her paraphernalia with the authority ot her husband : in such sale, what would be the necessity of a renunciation on the part of the wife ? Civil Code, 335, art. 58.
    Th e wife could not bind herself jointly with her husband by the Spanish law, except as, far as she had been benefited thereby. By the civil law it seems that the wife now may, since the Civil .Code grants her a mortgage for her indemnity with respect to those obligations. Civil Code 333, art. 53, num. 3. 2 Febrero Contratos, number 114, p. 105.
    IV. Su p p o s i n g the renunciation be necessary, Madam Bourcier, must act against the purchaser or possessor of the plantation sold by her husband the marriage, since she has not consented to that sale.
    
      m V. At any rate'Mad. Bourcier is bound to act at first against a sale made by her husband, of a plantation, during marriage to which she gave no assent.
    VI. According to Febrero, the renunciation of the wife in case of the sale, even of a dotal estate, must be made in the same form as in cases in which she bound herself as surety for her husband» or in solido with him. 1 Febrero Juicios-, ch- 3, § 1, p. 392. Contratos, ch. 4, § 4, num. 115 &? 117.
    
      l.ivmgston, for the plaintiff, declined any argument.
   By the Court.

The former judgment requires but a small alteration : and the Court amend it, ■

It is further ordered, adjudged and decreed, that the real property and slaves, bought by the. defendant, from the plaintiff’s husband, be sold to make the sum of four thousand dollars due to her, with legal interest since the date of the judicial demand and costs of suit: legal notice being given to third possessors, if any there be.  